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The anti-trans legislative wave isn't stopping
In addition to new anti-LGBTQ laws, eight anti-trans bills are awaiting governors' decisions — including bans on medical care for trans minors and bans on trans girls playing school sports.
More than 80 anti-LGBTQ bills have passed at least one chamber of a state legislature this year — more than 20 of which passed a legislative chamber in just the past two weeks, since my last legislative update at Law Dork.
There are, already this year, 10 new anti-LGBTQ laws on the books across six states. Eight more anti-LGBTQ bills — having passed the state’s legislature — are on or headed to governors’ desks, with most of them likely to become law.
As I’ve said before, my goal with these updates is not to provide comprehensive coverage of the anti-LGBTQ landscape. It is not to supplant the excellent coverage from advocates like Erin Reed, who does an incredible job of covering — here and on Twitter — the day-to-day movement, in committees and on the floor, of this legislation.
Instead, my aim here is to look more narrowly at the legislation passing chambers and moving toward final passage to see what specific measures could become or are heading to becoming law. I want to make sure that information is neatly collected, with an eye toward lawyers and lawmakers (and staff). Then, to the extent possible, I add some analysis, highlighting elements I notice in some of the bills.
As always, my list comes primarily from a review of the ACLU’s legislation tracker, which itself is becoming a significant task, along with other developments I see online.
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NEW LAWS: First, three new anti-LGBTQ bills or bills with anti-LGBTQ provisions have become law in the past two weeks, making a total of 10 anti-LGBTQ new laws this year.
In Arkansas, a previously passed ban on gender-affirming medical care for minors has been enjoined by the courts, keeping it from going into effect. As such, Republican Gov. Sarah Huckabee Sanders signed into law a new bill, S.B. 199, on March 13. It is Act No. 274, and the measure allows for a private lawsuit due to injury — broadly defined — resulting from gender-affirming medical care, with a 15-year statute of limitations after the minor turns 18. As with other laws passed this year, this law includes puberty blockers and hormones.
This “malpractice” law does include what I believe is a unique provision — a “safe harbor” that is a defense to such a lawsuit for providing gender-affirming medical care if the provider meets several conditions.
These conditions are onerous, however, and include documenting that the minor’s “perceived sex was invariably inconsistent with the minor’s biological sex” for two years before treatment, several other medical requirements, and a requirement that minor and parent are given a propaganda document multiple times detailing many of the talking points of opponents of gender-affirming care for trans minors.
Also in Arkansas, S.B. 294, an education reform bill covered previously at Law Dork, is now Act No. 237. Republican Gov. Sarah Huckabee Sanders signed it into law on March 8. The law, as reported previously here:
includes a ban on “indoctrination” relating to what it calls “critical race theory” (see pages 20-22 for the specifics) and a ban on classroom instruction related to “gender identity” or “sexual orientation” specifically through fourth grade.
Finally, in West Virginia, H.B. 3042 — the Equal Protection for Religion Act — was signed into law by Republican Gov. Jim Justice on March 9.
The Human Rights Campaign criticized the new West Virginia law as a “religious refusal bill” because, the LGBTQ group stated, it “could allow anyone to be exempt from following a law or a governmental policy if they believe that law or policy burdens their religious beliefs.”
BILLS WITH THE GOVERNOR: In addition to those new laws, eight bills have passed state legislatures and are either headed to or are with governors awaiting final action. All are anti-trans bills. One — out of Kentucky — also has provisions that could impact LGBTQ students.
That bill in Kentucky, S.B. 150 — which originally was passed in the Senate as a “parents’ bill of rights” education bill with anti-LGBTQ provisions — was amended and greatly expanded in the House on Thursday — including with a ban on gender-affirming medical care for minors — before passage there, which then was quickly followed by concurrence in the Senate. It all happened so quickly that the state’s legislative website is not up to date with the final language.
That language, though, will go to Democratic Gov. Andy Beshear. Even should he veto the bill, as Reed noted, the veto could be overridden by the legislature. Reed has more on what reporters in Kentucky have found about the amendments thus far:
In Iowa, S.F. 538, another bill that would ban gender-affirming medical care for minors, was introduced on March 6. It had passed both chambers by March 8 and is headed to Republican Gov. Kim Reynolds.
A similar ban proposed in West Virginia, H.B. 2007, was amended repeatedly, but reached final passage late last week and is headed to Justice.
Three anti-trans sports-related bills are headed to governors:
H.B. 2238 in Kansas — which would ban trans girls and women from women’s teams at the primary, secondary, and collegiate level — was presented to Democratic Gov. Laura Kelly, who vetoed a similar bill last year, on March 13.
H.B. 209 in Utah — which would bar public schools from participating in any athletics association that does not require birth certificate collection, relating to sex confirmation — was sent to Republican Gov. Spencer Cox on March 13.
S.F. 0133 in Wyoming — which would ban trans girls and women from women’s teams at the high-school level — was signed by the House speaker and Senate president on March 3. Republican Gov. Mark Gordon has not yet acted on the bill.
Also in Utah, S.B. 93, a bill that would limit sex marker changes on birth certificates — particularly as to minors — was sent to Cox on March 13.
Finally, in Arkansas, H.B. 1156, an anti-trans school bathroom bill that also includes limitations relating to overnight school trips, was amended and has now been passed by both chambers as amended. It was ordered to be transmitted to Huckabee Sanders on Thursday morning.
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OTHER MOVING LEGISLATION: In addition to the bills that have passed state legislatures, there are many other anti-LGBTQ bills or bills that could target LGBTQ people that have passed a legislative chamber over the past two weeks.
Georgia senators passed a ban on some gender-affirming medical care for minors, S.B. 140, on March 7. The language bars surgery and hormones, but not puberty blockers. The House Public Health Committee favorably reported the bill on Wednesday.
In Arkansas, S.B. 270, an anti-trans criminal bathroom bill, has passed the Senate and is in the House. Some amendments were made to the bill, but it still would criminalize trans people going to the restroom in accordance with their gender identity if a minor is in that restroom.
Other — non-criminal — anti-trans bathroom bills are moving forward in two states: An Idaho bill that has now passed both legislative chambers with different language would allow contractors to ban trans people from using the restroom in accordance with their gender identity, and a North Dakota bill would bar the use of restrooms by trans people in accordance with their gender identity in many government facilities.
And, yes, Tennessee’s House passed a bill on March 6 stating that “[a] person shall not be required to solemnize a marriage.” But, in addition to questions about what the bill would actually do, action on the bill in the Senate Judiciary Committee was “deferred … to 1/23/2024.”
School measures, however, are moving in several states:
Two versions of Florida’s “don’t say gay” law have passed a legislative chamber: One in Idaho (S.B. 1071) that would “prohibit instruction on human sexuality, sexual orientation, or gender identity prior to fifth grade” and another in Iowa (H.F. 348) that would bar similar instruction and apply “in school districts and charter schools in kindergarten through grade six.”
S.B. 1001 in Arizona is an anti-trans bill that restricts use of trans students’ pronouns in school.
S.B. 145 in Kentucky is an anti-trans bill addressing school sports.
There are also several bills relating to drag, either directly or indirectly. Depending on final language, interpretation, and enforcement, some of these bills could also target trans people. The ACLU flags these bills as affecting “Free Speech & Expression”:
In Arizona, three bills — one banning state money being used on drag shows for minors, one creating prohibited “adult cabaret performance” locations, and one changing abuse laws to include “adult-oriented performances” — have passed the state’s Senate.
In Idaho, a bill that would expand the law on “sexual exhibitions” by adding an obligation “to restrict the access of minors in certain instances” passed the House. It includes limitations based on a performer’s sexualized use of “accessories that exaggerate male or female primary or secondary sexual characteristics.”
In Kentucky, a bill that passed the Senate criminalizing to “adult performances” in certain locations has specific language including “male or female impersonators” in the definition of “adult performances.”
In Tennessee, a bill would require a permit to perform “adult cabaret entertainment for compensation,” already expanding on the recently passed law criminalizing certain drag performances.
Other bills that have passed a legislative chamber include a bill in Oklahoma (S.B. 408) that passed the Senate defining terms like “mother,” “father,” “male,” “female,” and “sex.” A similar measure passed the Tennessee Senate.
Another Oklahoma bill (S.B. 404) that passed the Senate would create an Oklahoma Religious Freedom Act similar to the measure signed into law in West Virginia.
PAST UPDATES: Here are my other 2023 anti-LGBTQ legislative updates:
March 1: “The newest anti-trans law” (second item)
Jan. 23: “Anti-LGBTQ — primarily, anti-trans — bills” (second item)
GOOD NEWS: OK, I know. Too much. But … there was some good news this week.
Michigan Gov. Gretchen Whitmer, a Democrat, signed a bill into law banning discrimination based on “sexual orientation, gender identity and gender expression.” The law, Clara Hendrickson at the Detroit Free Press wrote, covers “housing, employment, education and public accommodations.”
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This paragraph was updated to include additional information about both the new law and Arkansas’s previously passed and currently enjoined ban on gender-affirming medical care for minors.